Art of Property Launched! How are these ROGUES allowed to operate?
Important Update: Art of Property launched by Lisa Evans. It appears Lisa Evans is now crawling back into the Estate agency business with a new venture of which she is the Managing Director. Investigations are ongoing into how she can be allowed to rise from the mire and findings will be published here.
For now BEWARE: Evans is back – View Art of Property Website
Important Update: Penyards Country Properties Ltd has been taken over No.17 Marketing, one of whose directors is Paul Grant, managing partner of Southampton law firm Bernard Chill & Axtell.
The Company is now trading as Domum Property
Donum claim on their website: ‘Domum Property are an Estate Agent in Hampshire with 30 years experience with offices across Winchester’…
Has nothing changed? This is clearly untrue and misleading as Donum is a new company and the website was only registered on 2016-08-04 by Paul Grant.
No attempt has been made by this new company to address the carnage created by the Evans’ and Penyards Country Property READ ON…
“I will bankrupt you!”
The ominous threat from Graham and Lisa Evans, Penyards Estate Agents, now bankrupt themselves!
FULL STORY: PENYARDS BANKRUPT
As you’ll read below, for some time we’ve sustained a campaign alerting people of our own experience with Graham and Lisa Evans, directors of Penyards Country Properties, Hampshire. From feedback we’ve received it appears that this is an experience shared by a number of very unhappy customers.
Karma is a weird and wonderful thing. We do feel that this has not come soon enough and that it’s criminal the Evans’ were allowed to continue in practice for so long even after all regulatory authorities were contacted.
We took every avenue open to us but the industry closed ranks to protect their own. We hope that our situation can be used as a salutary lesson and that rogue agents are not allowed to operate, destroying innocent people’s lives; people who simply trusted them to sell their home.
HM Revenue and Customs are the biggest creditor of Penyards with the taxman out of pocket to the tune of £422,000.
Other creditors included Lloyds Bank which is owed £232,000.
Lloyds, as the only secured creditor, were consulted by the administrators about the sale and did not raise any objections. Begbies Traynor’s report suggests an anticipated return to Lloyds of just £65,000 to £75,000.
Other creditors include Fareham Borough Council (£4,004), Test Valley Borough Council which is owed almost £11,000 in rates, accountants Wilkins Kennedy (18,282) and the Echo’s parent company Newsquest.
Penyards recorded an operating loss of £131,000 at the end of 2014 and Gavin Savage, director of Begbies Traynor’s Southampton office said that following the crash of 2008 Penyards had been hit by increased competition, lower fees and on line marketing (that’s us 🙂
Administrators Begbies Traynor sold the firm and its assets for £180,000 to No17 Marketing who will trade as Penyards but have not taken on the old firm’s debts.
According to the administrator’s report it was Mr Grant who first contacted them to discuss Penyards’ financial position The new Penyards advertising states that the company is in partnership with Bernard Chill & Axtell.
Graham and Lisa Evans, the founders of Penyards, who live in Downton, are to be retained as consultants.
In our opinion this is nothing more than evasion. Honourable people act honourably!
Penyards ‘screwed’ us out of $100,000 for a sale they didn’t even secure, based on an out of date contract. They secured a default judgement in the UK, which we could not defend as we’d emigrated to New Zealand. Our defence was sent by post however, the court didn’t present it.
Evans nearly bankrupt us and as you’ll read, that was the Evans’ entire goal. The irony is, that he was enforcing this payment to stave of his own bankruptcy!
Meet the man himself, Graham Evans of Penyards Country Properties Hampshire. Along with his partner Lisa Evans their company were contracted to sell a local property in New Forest Hampshire.
The vendors were extremely unhappy with the service so naturally fired them … you wouldn’t believe what happened next!
- Evans threatens legal action for defamation. Read More
- Evans goes to the police station and claims harassment! Read More
Read on, prepare to be confused and discover how certain estate agents such as Evans use a ‘standard term contract’ in what appears to be on first reading, a breach of the Unfair Contract Terms Act and in this case to leverage a specific clause to the tune of tens of thousands of pounds for a sale they didn’t even secure!
The legislation surrounding estate agency contracts is at best contradictory, at worst a minefield and even the lawyers aren’t getting it right.
On the one hand ‘any standard clause that favours the seller’ is in clear breach of the Unfair Contracts Act yet, The Estate Agents’ Regulations outline the parameters for the use of the standard term clause!
Then, buried away in a totally separate area of the Unfair Contracts Act the un-negotiated standard clause is said to not apply if it is mandatory!
Regardless, the clause is extensively covered by The National Association of Estate Agents and The Property Ombudsman Code of Practice in that the terms of termination must be clarified in writing if an estate agent intends to reference it in the future. (Something Evans decided to ignore)
The contract with Evans would have meant paying a commission of some £21,000. However as you’ll read the contract was terminated, there was no written agreement of cancellation as outlined in industry guidelines and the contract went past the six months limitation. Evans managed to secure a default judgment in absence of the vendor (they were overseas) and this is what they are now liable for :
- Principal amount of judgment – GBP£26,100.00;
- Interest calculated at 8% per annum accrued – GBP£4,058.55;
- Costs order dated 2 February 2015 – GBP£5,005.12;
- Costs order dated 25 February 2015 – GBP£5,038.90;
- Interest on £26,100.00 – GBP£1,670.40;
- Total – GBP£41,872.97
- PLUS £6000 legal costs incurred by the vendors
WITH THE CURRENT STATE OF THE ESTATE AGENCY INDUSTRY THIS COULD HAPPEN TO ANY HOME OWNER
Explanation of the rights in the Estate Agents (Provision of Information) Regulations 1991 regulations are as follows:
Regulations 5 (a)
“SOLE SELLING RIGHTS
You will be liable to pay remuneration to us, in addition to any costs or charges agreed, in each of the following circumstances:
if unconditional contracts for the sale of the property are exchanged in the period during which we have sole selling rights, even if the purchaser was not found by us but by another agent or by any other person, including yourself;
if unconditional contracts for the sale of the property are exchanged after the expiry of the period during which we have sole selling rights but to a purchaser who was introduced to you during that period or with whom we had negotiations about the property during that period.”
(b) Sole agency
You will be liable to pay remuneration to us, in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the property are exchanged with a purchaser introduced by us during the period of out sole agency or with whom we had negotiations about the property during that period; or with a purchaser introduced by another agent during that period.”
The Property Ombudsman Services’ Code of Practice advises:
Fee Entitlement and Client Liability
5q At the time of accepting instructions from a client, you must point out and explain clearly to that client in your written Terms of Business:
- that you may be entitled to a commission fee if that client terminates your instruction and a memorandum of sale is issued by another agent to a buyer that you have introduced within 6 months of the date your instruction ended and where a subsequent exchange of contracts takes place.
If no other estate agent is involved this time limit extends to 2 years.
- and that the client may be liable to pay more than one fee if:
- that seller has previously instructed another agent to sell the same property on a sole agency, joint sole agency or a sole selling rights basis; or
- that seller instructs another agent during or after the period of your sole agency, joint sole agency or on a sole selling rights basis.
5r At the time of the termination of the instruction, you must explain clearly in writing any continuing liability the client may have to pay you a commission fee and any circumstances in which he may otherwise have to pay more than one commission fee.
5s Your action in pursuing a commission fee or additional charges must be proportionate and reasonable and not intimidatory.
5t Although nothing precludes you taking court action to pursue payment of your commission account, it is generally expected that you will not take court action when a complainant has referred the matter to the Ombudsman. If however you do pursue payment of your commission fee through the courts you must agree to the Ombudsman considering any outstanding service-related complaints after the court action has been determined.
In this case Evans did not send a written Terms of Termination and more importantly he was completely out of time ie the statutory SIX months had passed. When a complaint was made to The Property Ombudsman they appeared to close ranks, protect their member and whitewash the severe breaches that have culminated in bankruptcy proceedings.
Everybody knows that legal documents are confusing.
Standard terms and conditions are often even more confusing. However, in 1995 the Unfair Terms in Consumer Contracts, which aimed to help the consumer, came into force. These regulations also apply to estate agency agreements.
The regulations are aimed at contracts made between businesses and consumers, and contracts which are drafted in advance and presented to the consumer to sign. They apply to all standard terms (i.e. those that have not been individually agreed with the consumer), by applying a test of ‘fairness’. If any of the standard terms fail this test, then they will not be enforceable against the consumer.
However, dig deep and they state:
(2) These Regulations do not apply to contractual terms which reflect
(a) mandatory statutory or regulatory provisions (including such provisions under the law of any Member State or in Community legislation having effect in the United Kingdom without further enactment);
But look! The point is, how are simple homeowners expected to understand all this?
Agents like Evans are intimately familiar with property law and as such are able to leverage it at will to their advantage.
In this case he has chosen to ignore virtually ALL industry codes of practice we believe knowing that the authorities really have no teeth.
This clause enables an agent such as Evans to claim a fee ALMOST TWO YEARS after he failed to secure a sale, and over SIX MONTHS after his contract was terminated.
The chilling effect of this clause leaves innocent homeowners open to TWO agency fees as they will have moved on and entered into a new contract.
There are many cases each year where agents lock horns over commissions leaving the homeowner helpless and stuck in the middle. We are aware that there are other cases where Evans has gone to ‘war’ over the assets of innocent vendors in Hampshire. (Penyards Vs Spencers)
The Office of Fair Trading has now been disbanded and were responsible for enforcement. Trading Standards have now taken on the role and appear to have very limited powers it seems.
The upshot is that Evans is able to (according to the vendors in this case) ‘destroy our lives’ and with the bodies tasked with protecting homeowners ‘fobbing us off’ they are empowering such ‘rogue’ trading.
Campaign For Clear Contracts
As outlined above, the term that has caused so many problems is unclear and in our opinion unfair. We are launching a campaign to have this clause
struck out of estate agency contracts because in reality and when enforced by an aggressive agent ‘it is heavily biased to the agent’.
- We will be lobbying local estate agents to remove this clause and promote the fact they have done so
- We will be lobbying Parliament to clear up the law surrounding this clause
- The result WILL ONLY BENEFIT AGENTS and demonstrate to customers they are open and honest
- It will demonstrate that agent has faith in their service and does not need to resort to ‘unprofessional practices’ should they fail to sell a property whilst under contract
If Government won’t clear up the estate agent industry then they have to self-regulate and in promoting the the fact that this clause is now removed from contracts (with the Penyards case at its epicenter as a case in point), then we believe this can only be a win, win situation.
The fact is that this clause is in most estate agency contracts however, most are reasonable and fair and do not abuse it. They also adhere to their industry code of practise so it really is redundant. The ONLY reason that cases such as Penyards aren’t more widespread is because agents are keen to promote a ‘clean’ industry.
Agents such as Graham Evans who has embarked on a personal crusade culminating in his instructions to ‘bankrupt’ vendors who simply put their faith and trust in his company to sell their home should (in our opinion) be exposed and held to account.
To sum up the issue and the unfair contracts act:
Any term that is not individually negotiated and favours the vendor (be it products or services) is in breach of the act … unless the standard clause favours the vendor, it is not individually negotiated and is covered elsewhere in the millions and millions of words buried deep in UK legislation!!!
Penyard’s contracts are typical and consist of mostly standard terms. Generally they are of no consequence however in the hands of what has been described in this case as a ‘rogue and incredibly aggressive’ agent such Evans (see comments by Evans), the clause has been leveraged to such a staggering degree that he’s instructed his lawyers to bankrupt the vendors in pursuance of a fee ‘they’ believe he is simply not entitled to.
‘He failed to sell the property whilst under contract and his team breached their duty of care on multiple occasions by disregarding explicit instructions regarding the property and their situation.’
Now one thing to bear in mind is that in this case the vendors are simply a hard working family who put their trust and home in the hands of Penyards as part of their move to a new country. Now that is in jeopardy!
“You’ve bullied and insulted everyone including your fellow professionals and we’ve had to endure your cancerous intrusion into our lives for years now.”
The summary is as follows:
The vendors contracted Penyards to sell their property. They were extremely unhappy with the service for reasons that are outlined in this website and fired the company.
During the contracted period a person viewed the property but did not buy. Almost two years later that person bought the property through a new agent via a new marketing campaign under a new contract.
The Evans partners got wind of this and decided that they were entitled to a fee also despite the fact that the vendor did not want to go back with them.
The new agent worked extremely hard to secure what was not a straightforward sale and eventually navigated it to conclusion.
It was at this point Evans began a campaign of what has been described as ‘an unprecedented regime of harassment and bullying of the most intense degree’.
The vendors expected the agents to work through the situation but Evans would have none of it. They refused to follow a complaints procedure as outlined in industry practices and rather than go to mediation, instructed lawyers to freeze assets and continued to interfere with the sale … this was prior to exchange of contracts when no fee was due to anyone!
Not only has Evans accumulated substantial costs in pursuit of his fee, the agent that actually did the work hasn’t been paid because the vendors can’t pay TWO commissions.
Now it must be understood that when an agent is fired there are industry guidelines that ought to be adhered to. In this case Penyards failed to comply with any guidelines such as supplying a list of people they would claim a commission against and clarifying the terms of termination (see TPO guidelines). As you’ll read the case gets worse with avenues for redress that are supposed to be there to protect the consumer being blocked at every junction.
The Property Ombudsman were contacted twice but failed to act by ‘fobbing off’ the vendors who believe the organisation has failed to uphold its mandate by not protecting consumers and as Evans isn’t a member of the national Association of Estate Agents they have no redress.
When Penyards were fired, reasonable business sense would determine that the ‘professional’ course of action would be to look at the reasons why; to get the house in order and ensure it, a) doesn’t happen again and b) work to offer an improved service.
The good name and reputation of the company should come first, the service should be second to none.
That’s the way a ‘professional’ outfit would act however the case of Evans has turned out to be very different in this case.
In this case he embarked on his campaign ‘like a hungry dog’ for an agency fee the vendors felt and according to legislation (outlined here) he absolutely do not deserve. He pursued them to their new home half-way across the globe taking advantage of his home-ground position in securing a court judgement made in default because the court failed to present the vendor’s defence. All subsequent correspondence was sent to addresses where it was known the vendors wouldn’t receive them, despite having the correct contacts.
The outcome is that relying on a clause allegedly deemed ‘unfair’, Evans managed to generate costs of nearly £30,000, PLUS the commission.
Tactics the vendor’s say typifies the ‘dirty tricks’ assault they have been subjected to for over three years.
Despite advice from The National Association of Estate Agents, lawyers, published materials regarding the Unfair Contracts Act and The Property Ombudsman guidelines stating that Penyards were not in a position to rely on the clause in question, in the interests of fairness and what one would consider ‘normal’ business practices, the vendor’s sought mediation. Evans’ response was to immediately go into ‘aggressive, offensive’ mode backed up with threats from his lawyers.
There was absolutely no attempt to seek mediation through the complaints process – ‘it’s was Evan’s way or the byway’.
As fellow professionals chipped in to help they were not only met with the same reaction but even received insults. The acting agent at the time contacted Evans offering to resolve the situation. Evans replied in a letter (published on this website) using the most surprising language calling them ‘cowboys and accused them of ‘speaking with forked tongue’.
The reason for this website is to outline the issues that can arise from standard term contracts and to launch the campaign to have them outlawed for good.
Ironically, there is a section on the Penyards website entitled Fair Play where Evans claims to be lobbying against the very instances of ‘professional misconduct’ he is allegedly embroiled in.
“My position as Managing Director of Penyards is to seek continual improvement in our services, professional conduct and the manner in which we represent both our clients and customers. For over 30 years I have petitioned various government bodies in an attempt to encourage regulation to our industry as a whole, in particular, to set in place laws that are witnessed working successfully …”
The hypocrisy is evident!
So if the agents won’t self regulate and the bodies set up to protect the consumer actually protect them, then the time has come for the example set by Penyards and Graham Evans to be held up and be accounted for.
How to protect yourself
The issue here is that the average person placing their trust and assets in the hands of an agent such as Penyards Country Properties is not familiar with the law and should be fully protected.
The contracts need to be absolutely unambiguous and any term such as the one Evans has leveraged must be struck out.
If the agent will not strike out the clause, then go elsewhere. The contract has a right to be fair for both parties but an open-ended claim for a commission the agent did not earn in the first instance by failing to negotiate a sale … is plainly unacceptable.
At this point the clause Evans leveraged has not been tested in court but the vendors feel that morally and in the course of honest, professional business, it should never have been ‘abused’.
You are NOT protected!
The Unfair Terms in Consumer Contracts Regulations 1999
1. The law is clearly documented all over the internet but what they fail to say is that although you think you are covered and even lawyers will say you are, you are not, as there is a get out of jail clause for the vendor.
The Property Ombudsman Code of Practice
2. There are so many loopholes when making a complaint it’s almost impossible to get anywhere and when you look at their punitive measures they are, in our opinion, pathetic. The majority of complaints result in a ‘don’t be a naughty estate agent letter’ or less than a £500 fine.
That’s if the complainant isn’t fobbed off altogether.
Trading standards appear to be more interested in ‘other matters’ and hide behind Citizen’s advice, which is run by a bunch of volunteers.
While every attempt has been made to ensure that the information provided on this page is accurate, the publisher is not responsible for any errors or omissions, or for the results obtained from the use of this information. The information on this page should not be used as a substitute for consultation with a qualified legal adviser.